RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01915
BRANCH OF SERVICE:  Army 	BOARD DATE:  20140724
DATE OF PLACEMENT ON TDRL:  20021108
Date of rEMOVAL FROM TDRL:  20041105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (71L20/Administrative Specialist) medically separated for a neck condition and asthma.  The neck and asthma conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent P3/U3 profile and referred for a Medical Evaluation Board (MEB).  The neck pain and asthma conditions, characterized as “cervical degenerative disk disease” and “moderate persistent allergic asthma” were the only two conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “pain and slight limitation of cervical spine” and “asthma” as unfitting rated at 10% and 30% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and placed the CI on the Temporary Disability Retired List (TDRL).  For the TDRL re-evaluation the PEB re-adjudicated both the neck and asthma condition.  While the neck rating remains at 10% the asthma rating was reduce to 0% due to non-compliance. The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “THE VA RATED ME AT 50%; I REQUEST TO BE CHANGED TO MEDICALLY RETIRED; I HAVE NOT BEEN MAINTAIN GAINFULL EMPLOYMENT SINCE MY DISCHARGE DATE; AT THIS TIME I AM NOT WORKING AT ALL DUE TO MY S/C DISABILITES”. 

SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting neck and asthma conditions are addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations and DoDI 6040.44 defines 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:  

Final Service PEB - 20041020	VA (3 Mo. Prior to Adjudication Date*) - Effective 20021108	
On TDRL - 20021108	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Asthma	6602	30%	0%	Asthma	6602	30%	20020821	
Cervical Spine	5290/5241 	10%	10%	Residuals, C5-6 Discectomy	5290	20%	20020821	
Other x 0 (Not in Scope)	Other x 1	20020821	
Combined:  40% → 10%	Combined: 50%	
*Reflects VA rating exam proximate to TDRL placement; VA rating at time of TDRL removal remained the same

ANALYSIS SUMMARY:  The Board directs attention to its rating recommendation for the cervical spine condition.  These policies were revised during the CI’s TDRL tenured.  For the CI’s initial TDRL entry, the PEB applied the older codes and criteria that were being utilizes prior to the 23 September 2002 policy revision.  When the CI was removed from TDRL, the PEB at that time utilized the new codes and criteria that were implemented after the September 2002 policy revisions in determining the CI disability rating.  The Board’s recommendations for rating, IAW DoDI 6040.44, must be and shall be, premised on the codes uses during both TDRL entry and removal. 

Cervical Spine (CS) Condition. The narrative summary (NARSUM) notes the CI to have a long history of neck pain extending to her arm which became severe after pregnancy.  Magnetic resonance imaging (MRI) of the cervical spine dated 27 December 2000, revealed a disc at the lower neck level without nerve impingement or canal stenosis.  Electro-diagnostic studies performed on 12 March 2001, revealed a chronic neuropathy originating from the lower neck vertebra.  On 18 September 2001, the CI underwent neck surgery for removal of the disc and lower neck fusion with bone grafts.  Post-operatively the CI did well, experiencing improvement of her neck symptoms and successful healing of the fusion site.  During an orthopedic examination dated 30 April 2002 (9 months post-operatively and a month prior to the narrative summary (NARSUM)), the CI reported only intermittent neck pain.  At the MEB NARSUM initial evaluation performed on 30 May 2002 (5 months prior to TDRL placement), the CI reported only intermittent neck pain requiring only occasional non-prescription medication.  The findings on physical examination reference an orthopedic consultation dated 26 April 2002 which stated that revealed a well healed neck scar, slight decrease in CS flexion, normal motor and reflex exam and slight decrease in sensation in the right little digit.  Range-of-motion (ROM) evaluation of the neck was quoted from physical therapy (PT) examination dated 31 May 2002 and is included in the below chart.

At the VA Compensation and Pension (C&P) exam (performed 2 months prior to TDRL placement), the CI reported constant neck pain radiating to right arm and digits with associated mild decreased strength.  She noted no loss of hand dexterity.  The examiner recorded that the CI was “unable to quantify her weakness in terms of what she can do.”  On examination, the CI was in no apparent distress, gait/posture were normal and examination of the neck revealed a well-healed scar.  Mild spasm of the right neck was present, motor/reflex exams were normal and the examiner specifically recorded “grip and pinch strength to be normal.”  Slight decreased in sensation of the right hand fingers was present.  ROM evaluation is recorded in the chart below.  The CI was placed on the TDRL on 7 November 2002.  An electro-diagnostic study performed on 17 March 2004, revealed no evidence of radiculopathy.  The TDRL re-evaluation NARSUM dated 31 August 2004 (3 months prior to TDRL removal), revealed a normal gait, motor, reflex and sensory examinations.  ROM evaluation by PT dated 6 October 2004, is captured in the below chart.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below:

DOS 20041104, on TDRL: 20021108
Cervical ROM
(Degrees)	PT ~ 5 Mo. Pre- TDRL entry
(20020531) p.75	VA C&P ~ 3 Mo. Pre- TDRL entry
(20020821) p.815	PT ~1 Mo. pre TDRL REMOVAL
(20041006) p.29	
Flex (45 Normal)	30	50	40/40/40	
Extension (45)	35	40	45/45/45	
R Lat Flexion (45)	30	20	45/45/45	
L Lat Flexion (45)	30	40	45/45/45	
R Rotation (80)	45	50	75/75/75	
L Rotation (80)	45	80	60/60/60	

The Board directs attention to its rating recommendation based on the above evidence 

Cervical Spine (TDRL Entry):  The PEB and VA both rated the neck condition under code 5290, cervical spine limitation of motion, IAW with VASRD rules for spine evaluation in effect prior to September 2002.  The PEB rated cervical spine condition at 10% and the VA at 20%.  The under this code 10% rating requires a “slight limitation” of motion, while a rating of 20% requires “moderate limitation” without quantifying definition.  The Board unanimously agreed that preponderance of evidence in record supports a rating of 20% for the cervical condition at TDRL entry for moderate limitation of cervical motion.  The Board considered an additional rating IAW §4.123 (neuritis, peripheral nerve).  The Board agreed there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication.  The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the neck condition at TDRL entry.

Cervical Spine (TDRL Removal):  The PEB rated the neck condition under code 5241 (spinal fusion) at 10%, IAW §4.l7a, citing a reduced cervical ROM of 40 degrees flexion.  Under this code a rating of 10% requires forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees.  The next higher rating of 20% requires flexion of the cervical spine greater than 15 degrees, but not greater than 30 degrees.  The Board unanimously agreed that the record in evidence supported a rating of 10%, code under 5241, IAW §4.71a, for the back condition for decreased ROM of 40 degrees.  The Board considered a rating under code 5243, (incapacitating episodes/intervertebral disc syndrome) but agreed that no rating could be recommended under this code.  The Board considered a rating IAW §4.123 (neuritis, peripheral nerve).  The Board agreed there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, nerve conduction studies were negative and sensory symptoms had no functional implication.  The Board found no other appropriate codes for consideration.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck condition at TDRL removal.

Asthma Condition. The narrative summary (NARSUM) notes the CI to develop asthma-like symptoms during pregnancy.  Initial diagnostic pulmonary function tests (PFT) suggested a non-asthma condition (restrictive disease) secondary to the pregnancy.  Shortness of breath (SOB) symptoms continued after delivery.  The diagnosis of asthma was confirmed in August 2000 (methacholine challenge test) and treat with asthma specific medication initiated.  A cardiac source for the symptoms was ruled out.  Allergy evaluation demonstrated the CI to be sensitive to numerous pollens as potential etiologies.  The CI responded poorly to medical control with continued episodes of SOB.  PFT in February 2002, revealed FVC of 83%, FEV-1 of 80% and FEV1/FVC 0f 94%.  At the MEB/NARSUM evaluation dated 30 May 2002 (2 months prior to TDRL entry); the CI reported continued SOB even at rest and increased in SOB with audible wheezing with “almost any activity.”  Asthma medications at this time were inhaled steroids and bronchodilators.  On physical examination the lungs were clear.  The examiner opined that the CI “had been on maximum medical treatment for almost 2 years without significant improvement.”  The CI was placed on TDRL on 9 August 2002 for instability of the condition.

At a VA Compensation and Pension (C&P) exam dated 21 August 2002, the CI reported good response to asthma medications, but exacerbations of SOB that requires treatment with oral steroids twice a month.  On physical examination lungs were clear.  On PFT FEV-1 was 79% and FEV-1/FVC was 84%.  During the TDRL re-evaluation NARSUM dated 4 May 2004 (5 months prior to TDRL removal), medications for asthma, were reported as a bronchodilator, without definition of frequency of use and an inhaled steroid.  On examination chest was clear.  PFT were FEV-1 of 85% and FEV-1/FVC of 96%.  The examiner reported the CI’s breathing to be “stable” on medication but to be having a flare-up of her condition the last 2 weeks with allergic triggers requiring “more aggressive therapy.”  Medication regimen was changed with the addition of two new medications.  At the TDRL re-evaluation for the back condition dated 31 August 2004 (see above), medications were reported as “asthma medications.”  The CI was removed from the TDRL on 20 October 2004.

On VA C&P evaluation 4 November 2004 (a month post-separation), the CI reported taking asthma medications, singular and albuterol.  She noted no incapacitation as long as she uses her medication.  PFT were FEV-1 of 79% and FEV-1/FVC of 90%, with results hindered by “poor test performance”.  The examiner opined the CI to have “asthma, under treatment, well-controlled”.

The Board directs attention to its rating recommendation based on the above evidence.

Asthma Condition (TDRL Entry): The PEB and VA both rated the asthma condition as 30%, coded under 6602, asthma IAW 4.97, referencing the use of daily inhalational steroids.  A higher rating of 60% under this code requires FEV-1 of 40% to 55%; FEV-1/FVC of 40% to 55%, or at least three courses of systemic or oral steroids in the last year.  The Board undertook to determine of a rating higher than 30% for the asthma condition was supported by the record in evidence at the time of TDRL placement.  The Board noted the report of frequent treatments with oral steroids for her condition.  The Board agreed that the preponderance of evidence in record did not support the 60% rating under code 6002 for oral steroid treatment or PFT results.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the asthma condition at TDRL entry.

Asthma Condition (TDRL Removal):  The PEB rated the asthma condition at 0% coded under 6002 citing treatment noncompliance by the CI.  The PEB referenced a medical addendum, describing the CI to be intermittently using asthma medications, but “not as prescribed” and a pharmacy records not supporting frequent use of asthma medication.  The VARD dated 22 November 2004, based on the C&P exam dated 4 November 2004, continued the 30% rating for the asthma condition.  The Board unanimously agreed that the asthma condition was not compensable using PFT results.  The Board unanimously agreed that the record supported a 10% rating for intermittent medication use.  The Board undertook to determine if the 30% rating was appropriate.  The Board noted the change in asthma medication at the NARSUM evaluation dated 4 May 2004 and that the medication profile in record supports the CI to have filled these medications in close proximity to the IPEB adjudication.  The Board further noted the report on the C&P examination a month after the PEB of the continuation of these medications.  The Board agreed the records during the TDRL period were sparse and the medication profile somewhat ambiguous.  The Board, after deliberation, considering the totality of the evidence and with deference to VASRD §4.3 (reasonable doubt), concluded that the criteria for 30% rating are supported by the record and unanimously recommends 30% as the fair and equitable permanent rating for asthma in this case.  In précis, the Board recommends no change in the PEB adjudication for the asthma condition at TDRL entry and change of rating to 30% at TDRL removal.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the cervical spine condition, the Board unanimously recommends a disability rating of 20% at TDRL entry, coded 5290 and a disability rating of 10% at TDRL removal, coded under 5243, both IAW VASRD §4.71a.  In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30% at TDRL entry and a disability rating of 30% at TDRL removal, both coded under 6602, IAW §4.97.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Asthma	6602 	30%	30%	
Cervical Spine 	5290/5243	20%	10%	
COMBINED	50%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
SAMR-RB							

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150001316 (PD201301915)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
50% disability rather than 40% for the period 8 November 2002 to 4 November 2004  and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40%.

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the day following the TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 50% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 40% effective the day following the TDRL period.  

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA